From TomPaine.com :
Impeach: Yes, But...
Jamin B. Raskin
February 14, 2006
Jamin B. Raskin (email@example.com ) is a professor of Constitutional Law at American University and Director of its Program on Law and Government. He is also a Democratic candidate for the Maryland State Senate in the 2006 elections.
As the rule of law shrinks all around us in George W. Bush's second term, many citizens are looking to presidential impeachment as a path back to civilized limits on state power. Indeed, impeachment, as legal historian Raoul Berger once argued, is our major constitutional instrument for defending the rule of law against willful presidents who defy Congress and refuse to accept any constraints on their power.
The Framers made impeachment our key check against presidents with dangerous kingly ambitions. They believed strongly in the “high political purposes served by impeachment” and saw, as Berger put it, that impeachment’s 17th century forerunner—declarations by Parliament that ministerial acts were treasonous—“played a mighty role in the achievement of English liberty.”
Yet in the political opposition today, there is no consensus about impeachment. Registered Democrats all over America jump to their feet and applaud when someone calls for impeaching President Bush. According to a Zogby poll, fully two-thirds of all Democratic voters believe that impeachment proceedings should take place if Bush indeed ordered the wiretapping of U. S. citizens outside the law. To be sure, talk of impeachment is cathartic—but it is also totally serious.
Yet Democrats in Congress have pulled down a curtain of silence over the I-word. They believe that, with mounting corruption woes at home and spiraling war worries from Iraq, the Republicans are about to get their comeuppance anyway in the 2006 midterm elections. With all the stars aligned for victory in November, Democratic leaders in Washington do not want the inexorably nasty politics of impeachment distracting the nation, mobilizing the Republican base and possibly driving away Independent voters at the last minute. They remember the terrible image that stuck to Republican House managers who brought the puritanical case against Clinton—not for political crimes against the state but personal ethical lapses—while most Americans were indeed eager to simply “move on.”
And Beltway Democratic strategists say that introducing a bill of impeachment is a fool’s errand anyway because the Republicans control both the House of Representatives, which brings impeachment charges, and the U. S. Senate, which tries the case. Having just poured a lot of energy and money into the losing fight against Justice Alito, why hit our heads against the wall demanding something Republicans won't possibly allow?
Grassroots Democrats are less concerned with these practicalities and the fall elections and more focused on the Constitution, which provides for impeachment of the president, vice president and other civil officers guilty of “high crimes and misdemeanors.” Although this phrase leaves some ambiguities at the margin, everyone can agree that the following offenses allegedly committed by President Bush, Vice President Dick Cheney and other officials would be impeachable "high crimes" justifying their removal from office if indeed proven in Congress:
The Bush administration has knowingly taken us to war under false pretenses and in violation of the United Nations Charter, the Geneva Conventions and other international instruments prohibiting aggressive war. It has doctored and misrepresented evidence of weapons of mass destruction in Iraq, manipulated the flow of information from the war, secretly paid foreign entities to publish favorable news accounts and tried to suppress publication of photographs of the coffins of our returning war dead. Its law-breaking has cost thousands of American and Iraqi lives.
The president has ordered the National Security Agency to spy on American citizens in direct violation of the Fourth Amendment and the Foreign Intelligence Surveillance Act. The administration is now stonewalling Congress about what actually happened, merrily pleading reasons of state along the way.
The president has argued, and acted on the premise, that his administration has the right to hold and confine U.S. citizens indefinitely, without due process, access to the courts or even the right to see a lawyer.
The administration has set up secret prisons all over the world, many of them using torture and degrading treatment to humiliate, wound and kill detainees. The president has tried to redefine torture as only involving pain equivalent to that experienced during “major organ failure,” argued that international instruments and convention banning torture do not apply to the United States, and resisted Sen. John McCain’s push to codify a ban on degrading treatment.
The administration has presided over three of the worst policy disasters in American history: the shocking dereliction of duty that preceded the 9/11 terror attacks, the appalling negligence (at best) that generated the false conclusion that Saddam Hussein had “weapons of mass destruction,” and the mind-boggling ineptitude that turned Hurricane Katrina into a real weapon of mass destruction that ravaged one of the world’s great cities and killed hundreds and hundreds of our fellow citizens and displaced and rendered homeless hundreds of thousands more.
The pressing question now is how to reconcile the seemingly irresistible logic for impeachment with the Republican lockdown on all of our national political institutions—from the White House and the House of Representatives to the Senate and the Supreme Court, whose chief justice would preside over a presidential impeachment trial in the Senate. Impeachment, by design of the Framers, is not a remedy imposed by the courts but a set of charges brought by a majority in the House of Representatives and heard in a trial by the Senate, which can convict only with a two-thirds vote. It is a legal-style judgment emerging from our most political and partisan institutions.
We obviously need a strategy to close the gap between citizen Democrats, who see impeachment proceedings as a moral imperative for the return of democratic legitimacy, and congressional Democrats, who see impeachment as an implausible diversion from a practical political agenda.
The key is to think of impeachment not as a single event but as a series of steps to restore the rule of law and reassert the practices of popular democracy that have been trampled ever since the Republican Party and five collusive Supreme Court justices derailed the presidential election in 2000. We should follow these three specific steps to restore constitutional law and order:
1. Moral Impeachment: One meaning of impeachment is to charge with malfeasance in office, but the other is “To challenge or discredit.” We can debunk the administration's policies all over America, especially with the excellent work done by Rep. John Conyers and his staff on the fraudulent rush to war. Institutions with moral authority like universities, municipalities, unions and churches should conduct their own “Impeach-Ins” to impeach the various frauds and policy deceptions of the administration. The Federalist Society and others who support Bush should be invited to defend the constitutionality of Bush's actions.
2. Electoral Impeachment: We should nationalize the coming elections and use them to “impeach the Republican Party,” which has been captured by its most extreme elements and now poses a real threat to the Republic. The Abramoff-soaked Republicans in Congress have presided over dangerous political corruption, deficit spending, violation of civil liberty, and military and national security lawlessness. The 2006 elections must become a nationwide referendum on corruption and restoration of the rule of law at every level of government.
3. Congressional impeachment: If the Democrats recapture Congress or at least one chamber in 2006 and evidence of the administration’s law-breaking continues to mount, the moral, political and legal predicate will have been laid to introduce articles of impeachment that can actually be heard and passed. If President Clinton can be impeached (though not convicted) for lying about sex, why can't President Bush be impeached for lying about weapons of mass destruction, for spying illegally on Americans, for violating the Constitution and international treaty obligations, and for criminal dereliction of duty before, during and after 9/11, the invasion of Iraq and Hurricane Katrina?
It is ironic that the House impeachment of President Clinton proved so easy when his “high crimes” were so base and trivial. Meantime, the massive and fundamental offenses against law and constitutional order committed by this administration are only beginning to surface in polite conversation on Capitol Hill. But all of this just shows the truth of Gerald Ford's statement when he was a congressman that an impeachable offense is whatever the House of Representatives “considers it to be at a given moment in history.” It is important that we not allow impeachment to become a mere partisan tool for harassing the president but rather the guarantee of constitutional law and order.
In American politics, our sense of what is possible and what is practical can turn on a dime, and we, the people, are usually the force that makes it happen. In my dictionary, the word “impeachment” is immediately preceded by “impatience” and comes right before the appearance of “imperative.”